May 5 2020

Associated succeeds in strike-out application in Meghan Markle claim

Thomson Heath Jenkins & Associates
Thomson Heath Jenkins & Associates

Mr Justice Warby hands down judgment in the ongoing Meghan Markle v Associated Newspapers case.

On 1 May 2020, Mr Justice Warby handed down judgment in relation to the ongoing and much talked about proceedings between HRH Duchess of Sussex and Associated Newspapers.  The official judgment is available here.

In an action commenced in September 2019, the Duchess sued the Defendant in respect of five articles published by The Mail on Sunday and/or MailOnline in February 2019, containing private and confidential information relating to the Duchess and her relationship with her father. The main elements to the Duchess’ claim are that her handwritten letter contained her most personal and intimate thoughts and feelings and was therefore private and confidential. The Duchess further claims that there was no public interest in publishing the letter and that it was done so dishonestly and with the sole purpose of satisfying the curiosity of the Mail’s millions of readers.

The causes of action relied upon by the Duchess were: (1) that there was a misuse of private information, (2) a breach of the General Data Protection Regulation (GDPR), and (3) an infringement of copyright. Warby J’s focus was on the allegation of misuse of private information in which the Claimant alleged dishonesty, malicious intent and an agenda on the part of the Defendant in publishing the articles.

The Defendant raised the following issues in its Defence:

  1. Misuse of private information – whether the contents of the Letter were private and confidential (as alleged) and, if so, whether publication was justified in pursuit of freedom of expression;
  2. Data Protection – the Defendant admitted the information in the Letter was personal data but denied that the Defendant’s processing of the data was unlawful or unfair. Freedom of expression rights were relied on, and the exemption for journalism provided for by Article 85 of the GDPR; and
  3. Copyright – the Defendant disputed the copyright claim on the grounds that the letter was not an “original” literary work, or if it was, the Defendant did not reproduce a substantial part, or, if it did, the Claimant’s rights are outweighed by the other rights and interests engaged.

The Defendant, Associated Newspapers, sought to strike out parts of the Claimant’s claim. The Defendant in fact, targeted three specific parts of the Claimant’s pleaded case, namely:

  1. That the Defendant had acted dishonestly, and in bad faith;
  2. That the Defendant had deliberately dug up or stirred up conflict between the Claimant and her father; and
  3. That the Claimant was distressed by the defendant’s “obvious agenda of publishing intrusive or offensive stories about [her] intended to portray her in a false and damaging light”.

The Defendant’s application to strike out the Claimant’s allegations was made on the grounds that they did not form part of the cause of action advanced against the Defendant, were improperly pleaded, or were irrelevant. The Defendant further argued that to investigate those irrelevant issues would be oppressive and disproportionate to the case.

Following the remote hearing, which is fast becoming a normal part of litigation life, Warby J delivered his judgment, ruling in favour of the Defendant and striking out all passages attacked in the application. The Judge also struck out sections of the Claimant’s Reply, a case advanced at the hearing by the Defendant. Mr Justice Warby determined that some allegations made by the Claimant were (1) irrelevant to the purpose for which they were pleaded, while others were (2) inadequately made. The Judge concluded that his actions were undertaken ‘so as to confine the case to what is reasonably necessary and proportionate’ for both parties. Notwithstanding this, Warby J made clear that aspects of the case that had been struck out may be reintroduced if properly re-pleaded.

This judgment may be perceived as a victory by the media. However, this is just a preliminary hearing in what looks set to be a lengthy and hard fought legal battle, and Associated Newspapers still has a number of hurdles to overcome in relation to its Defence. It is unlikely that this will be the last hearing that we will see, in this claim, before the commencement of the full trial, which due to the Covid-19 restrictions, is unlikely to come before the court before next year.

This article is by Yinka McKay Wood and Moritz Schirmeister, they are both part of the media team at Thomson Heath & Associates.

Thomson Heath & Associates specialise in all areas of media law, including data protection, misuse of private information and intellectual property. Click here to find out more information.